UK Lawyers Who Originated 'Pay Up Or We'll Sue' Knew They Were Threatening Innocents

from the how-else-does-extortion-work? dept

Earlier this year, we noted that Davenport Lyons, the UK law firm, that really spearheaded the whole mass automated "pay up or we'll sue you for copyright infringement" business, before handing it off to ACS:Law was being investigated by the Solicitors Disciplinary Tribunal, a part of the Solicitors Regulation Authority, and the latest news says that the SRA is claiming that the two Davenport Lyons lawyers who were involved knew that they were threatening some innocent people, since the IP address data they had was not nearly specific enough to identify actual downloaders. Not surprisingly, the SRA doesn't look too kindly on lawyers doing things that involve threatening innocent people.

Re: Re: Know the law much Mike ?? ?

no they had all the probably cause they needed, read the original article, it is not about who is using your account, you are responsible for your account, when you got your account, you give your name and address, it is your account..

And if that IP address is connected to your account, and it is the same IP that is used to do something illegal. that is your responsibility..

And it clearly is probable cause, it is clear, and well defined that the particular IP address was used, it is easy to get that information, and it is easy to connect that IP to the user at the time..

That is probable cause, its far more probably cause than a cop looking at someone eyes and seeing he is on drugs, or could be on drugs.

But if you are using your mom's internet accound to do illegal things, what do you expect is going to happen when the cops knock on the door..

Re: Re: Re: Know the law much Mike ?? ?

Re: Re: Re: Know the law much Mike ?? ?

Actually, if you want to get it right, using your example, it would be like a police offer pulls you over because you are driving a red car with a dent in the fender. He then arrests you and puts you in jail. If you don't plead guilty he then goes to see where the dent came from hoping that it was a hit and run accident.

In other words, they only did any real investigation if the person didn't pay up. They had what looked like a possible "hit and run" based on extremely loose evidence and hoped the person just paid up not wanting to go through the cost of defending themselves.

Now Darryl, go back into your hole, you aren't supposed to come out until February...

Re: Re: Re: Know the law much Mike ?? ?

This is in the UK, so referring to the US constitution does not help your case much. However, let's say it this were in the US - because I know more about US law.

Probable cause does not apply. These are civil cases and probable cause applies to government agencies applying for a warrant. So, ignore that for now.

Yes, they have an IP address and that can point to an account holder that may have committed civil infringement. They have a couple of problems that they would need to overcome in the US.

The first is precedents about an IP address alone not being enough for a preponderance of the evidence as guilt of the account holder committing the infringement. Case law is currently unclear on this issue, so in the US, they could skirt by saying they think it is enough evidence (I'm not sure in the UK).

The second problem they have is that (if I remember correctly) have actually made file available and then sued the people that downloaded them. In a criminal case, this would have been considered entrapment. In a civil case, this kind of action - when it includes a threat letter demanding money to avoid a lawsuit could constitute fraud in that they knew that they did not have a viable legal case and sent the settlement letter anyway. Sending a settlement letter with the knowledge that you cannot win a lawsuit is illegal in the US (again, not sure in the UK) and it is possible that the prosecutor believes he can prove they had knowledge that they had no case.

Re: Re: Re: Re: Know the law much Mike ?? ?

No, it wouldn't. In the US [Wikipedia.org], in order for a situation to be entrapment, a government official/agency/etc. would have to INDUCE you to commit a blatantly illegal act.

From the above article:However, there is no entrapment where a person is ready and willing to break the law and the government agents merely provide what appears to be a favorable opportunity for the person to commit the crime. For example, it is not entrapment for a government agent to pretend to be someone else and to offer, either directly or through an informant or other decoy, to engage in an unlawful transaction with the person (see sting operation).

Considering there is no government agency involved in "making the file available", and because the case is civil (instead of criminal), Entrapment is not a viable defense.

Re: Know the law much Mike ?? ?

So it's okay to cast a net like this knowing that some innocent people will be caught up in it? These shysters need to have specific evidence that a specific person did these acts, and they don't have that. All they have is an IP number.

As a result, someone that is completely innocent and has not done the acts they are accused of will have to defend themselves because ACS Law is incompetent.

Let's say you drive a 2009 Silver Honda Accord, and let us also say that a bank robber used one in a getaway. Would it be fair for the police to round up all the 2009 Silver Honda Accord owners and prosecute them all? Of course not. The police would need to narrow the scope down a little more before zeroing in on a suspect, which is something ACS LAw isn't doing.

Re: Know the law much Mike ?? ?

"Yes Mike they are innocent, THEY ALL FREAKING ARE INNOCENT, until proven guilty (or innocent) by a court of law."
...
"You will not be arrested and charged until the enquiry, or investigation determines your guilt or otherwise."

Re: Know the law much Mike ?? ?

So, if I were a barrister, and were to sue you, darryl on a claim that I pulled out of my ass, on the basis that I suspect you might in a tiny way be guilty of said claim, I should not be punished for this flagrant abuse of the law?

Indeed, if I were to by pulled over, for a car search, it wouldn't incur any costs to me, except my time.

By suing someone you are incurring costs on that person, as well as tearing their lives upside down. They'd have to find a lawyer, and then pay his fees, in the hope that they win the trial and get their fees returned. Except that Big Media also has loads of money to pay for the Big Lawyers to help litigate.

See the difference?
Your example wouldn't cost me money, if the police didn't find anything.
The lawsuit that you put it against, would cost me money, and would amount to a fishing expedition ("we are sure you are guilty, it's up to you to prove your innocence")

Maybe the United States courts will take notice of this and realize that an IP address for anything, from copyright infringement to even child porn trading, IS NOT GOOD ENOUGH! Seriously, someone could hack into your wireless network, secured or not. Someone could put a tap into your line and run a cable to their home (considering most people aren't home 24/7, this is very possible).
Those are only two of the NUMEROUS alternative situations.

Re:

ok if you tap a phone, and run a cable how are you going to gain their IP address ?

and if your negligence results in the committing of a crime you are equally liable for that crime.

and lets face facts here, the people who were caught out for downloading the files were the ones who downloaded the files. No question about it, and you really dont know what your talking about if you think otherwise..

There are no cases here cited that the wrong person was found just that the person downloading was not the account holder. Does not mean a crime still did not take place, and a crime did not take place at that location. Clearly it did..

For example, the lady who did not know his son was gay, is an example they were given. They guy downloaed the porn, and was guilty. and was found by nothing more than the IP address. (it works)..

But the account holder and the crime were two different people, does not make them all innocent..

Re: Re:

Darryl, you haven't looked at all the possibilities here.
There are many technical mechanisms that might lead to the wrong IP address being identified, or even to the identification of a crime where no actual downloading took place.
You seem to believe that all the software and hardware involved (in the ISP's systems, the ip identification systems used by the rightsholders and the wider internet) work perfectly all the time. One thing we know for certain is that they don't.

The fact is that plenty of truly innocent people (ie people who have been accused where no-one in the household has done any piracy) have been accused.

It is also a fact that Davenport Lyon knew this from the very start and that their business model did not involve actually pursueing a prosecution or making a case, EVER.

They didn't care if people were innocent - they only cared if people would pay up.

Re: Re:

Well, where you get it wrong is pretty obvious... an IP address does not identify you specifically. I could use your ip address right now if I chose to, would you be to blame for not knowing I was using it? You need "probable" cause, not "possible cause"

Re: I've worked it out

For a guy claiming to be and engineer you sure know nothing about networks :)

IP spoofing doesn't exist then? Give your IP to angry people and see if you will not be included in a watch list for kiddy porn in minutes you dope. Please go to 4chan and keep bugging them to see what happens.

Wireshark doesn't give anyone a picture of what happens on a network? (So anyone decent would have real proof of transactions made not just an IP number)

I dare you go to 4chan using your own IP and start bugging people there.

Your house will be the biggest receiver of kiddy porn in the universe in no time, then I hope you get jail time for things you didn't do at all LoL

Re: Re: I've worked it out

Re: I've worked it out

Mike who?

Mike Masnick is well aware that infringement happens and the disrupting influence that it has on the business models of distributors and middle-men. In fact he has a very popular blog that often discusses this very topic. You should try reading it some time.

I want to see those law firms produce a "Wireshark" session to see if all those accused really were sending data to them, because P2P networks are notorious for spoofing IP addresses, I hope Darryl's IP gets there too so he can pay those law firms for their superb job.

If they just got numbers from the cloud and have no trace of it, they are the ones being reckless and dishonest.